Hassan v Hume - [2003] FMCA 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASSAN v HUME & ANOR

[2003] FMCA 476

PRACTICE AND PROCEDURE – HUMAN RIGHTS – Racial discrimination – whether any basis of claim of victimisation – whether any breach of relevant legislation.

PRACTICE AND PROCEDURE – Summary dismissal – application fails to disclose any reasonable cause of action to support a claim of unlawful discrimination.

Human Rights and Equal Opportunity Act 1986, s.46PO(3)
Racial Discrimination Act 1975, ss.17, 27
Federal Magistrates Court Rules 2001, r 13.10
Federal Court Rules, O 62

DO v University of New South Wales (2003) NSWADT AP 9
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
State Bank of New South Wales v Stenhouse (1997) ATR 81-423
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125
Dey v Victorian Railways Commission (1949) 78 CLR 62

Applicant:

GHALI HASSAN

First Respondent:

PROFESSOR ROY HUME

Second Respondent:

PROFESSOR JAMES McWHA

File No:

WZ 40 of 2003

Delivered on:

28 November 2003

Delivered at:

Melbourne

Hearing Date:

No hearing pursuant to Rule 15.03 of the Federal Magistrates Court Rules 2001

Date of Last Submission:

6 July 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Solicitor for the First Respondent:

Ms C Kirby of the University of New South Wales

Solicitor for the Second Respondent:

Ms P Keane

Solicitors for the Second Respondent:

Norman Waterhouse

ORDERS

The Application filed 12 March 2003 be dismissed.
The Applicant pay the Respondents costs pursuant to Schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 40 of 2003

GHALI HASSAN

Applicant

And

PROFESSOR ROY HUME

First Respondent

And

PROFESSOR JAMES McWHA

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an Application filed on 12 March 2003 Ghali Hassan (the Applicant) pursues a claim which had been the subject of a Notice of Termination by the Human Rights and Equal Opportunity Commission (the Commission) on 13 February 2003.
In the Notice of Termination it is noted that the Commission has attached the reasons for its decision to terminate the Claim and provided a copy of the original complaint.
The complaint before the Commission had been against the University of New South Wales (the UNSW) and the University of Adelaide (the UA) alleging victimisation under the provisions of the Racial Discrimination Act 1975 (the RDA). In the summary of complaint the Commission refers to the complaint form dated 10 September 2002 and states that the Applicant’s “PhD enrolment and Optometry scholarship were terminated by the UNSW on 23 April 2002 and that he claimed that UNSW’s decision constitutes an act of victimisation under the RDA because it was made on the basis that he had previously lodged a complaint with the Human Rights Commission under the RDA against the UA in 1997. The Applicant also claims that the UNSW sought to victimise him by obtaining information from the UA without his consent”. The summary of complaint of the Commission refers to the Applicant complaining that in providing fabricated and misleading information to the UNSW without his consent that this lead to the UNSW decision to terminate his PhD Candidature Scholarship at the UNSW and the UA had victimised and incited the UNSW to victimise the Applicant.
The Applicant has supported his Application by an Affidavit sworn on 12 March 2003.
The First Respondent filed a Response on 2 April 2003 which sought orders as follows:
“1.That the venue be changed to Sydney, New South Wales pursuant to Rule 8.01 on the ground that Perth is inconvenient to and expensive for the Respondent.
2.That the application be dismissed pursuant to Rule 13.07 or alternatively Rule 13.10 on the grounds that no contravention of any anti discrimination legislation is alleged and on the ground that the matters referred to in the application and supporting affidavit in so far as they relate to the University of New South Wales have been the subject of decisions of the Administrative Decisions Tribunal.”
The First Respondent relied upon an affidavit by Carol Anne Kirby sworn 2 April 2003. In her affidavit Ms Kirby deposes that she is the solicitor for the UNSW and otherwise has the care and conduct of the matter on behalf of the First Respondent. The deponent refers to the First Respondent as being the Vice Chancellor of the UNSW. The deponent states that on 28 October 2002 the Administrative Decisions Tribunal (the ADT) dismissed an application lodged on 2 July 2002 by the Applicant with the ADT whereby he sought review of the conduct of the UNSW. On 22 November 2002 the Applicant filed a Notice of Appeal to the Appeal Division of the ADT appealing against the decision to dismiss his Application of 2 July 2002. The Notice of the Appeal was annexed to the affidavit. On 31 March 2003 the appeal panel of the ADT dismissed the appeal of the Applicant. It is sufficient to note that the complaint before the Administrative Decisions Appeal appears similar to the complaint before the Commission and I note the orders sought before the Tribunal in his Application seek that the UNSW reinstate the living allowance (Scholarship) and the Applicant’s PhD Candidature or provide him with compensation for the loss and damage suffered by him as a result of the UNSW action. He refers to the obtaining of alleged confidential information by the UNSW which was used against the Applicant.
Orders were made by this Court on 3 April 2003 that the First Respondent (and if appropriate the Second Respondent) file and serve submissions and list of authorities in support of any summary dismissal Application on or before 2 May 2003. The Applicant was ordered to file and serve a reply and list of authorities on or before 16 May 2003. The court then directed that thereafter the matter of summary dismissal shall be determined on the written submissions and not otherwise unless directed by the Court.
The Second Respondent by a response filed on 17April 2003 also made an Application for summary dismissal. In its response the Second Respondent sought the following order:
“1. That the application be dismissed pursuant to Rule 13.07 or, alternatively, Rule 13.10 of the Federal Magistrates Court Rules on the grounds that no discrimination contravening any anti-discrimination legislation, in particular Section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 is disclosed in the Application.
2.Costs.”
After the orders were made by the Court, the First Respondent filed written submissions on 29 April 2003. The Second Respondent filed submissions on 1 May 2003 and the Applicant responded to those submissions by a letter dated 8 May 2003 and repeated essentially the claim and further added that he had not then received submissions from the UA. Certain documents were attached to the Applicant’s correspondence. The Applicant further provided the Court with a letter dated 28 May 2003 which then referred to the submissions made for and on behalf of the Second Respondent and again asserted that the UA had disclosed misleading and/or fabricated allegations against him to the UNSW.
Further orders were made by the Court on 18 June 2003 requiring the Respondents to file and serve any further submissions in reply to the Applicant’s submissions of 8 May 2003 and 28 May 2003 on or before 2 July 2003. It was then ordered upon the filing of the documents the Court would proceed to determine the Application for summary dismissal upon the documents filed.
The Second Respondent provided a reply to the Applicant’s written submissions in a document filed on or about 2 July 2003. The Court then received further written submissions from the Applicant dated

6 July 2003.
It is useful to refer to the Application and affidavit dated 12 March 2003 which sets out the allegations which may be conveniently summarised as follows:
·Private information held by the University of Adelaide was disclosed to the University of New South Wales.
·The information related to a disciplinary matter.
·The information was fabricated or misleading.
·The information had nothing to do with the Applicant’s academic records.
·The Applicant signed the UNSW application for admission form purely to verify the information provided by him and had not consented to his life history being investigated by the UNSW.
·The Applicant had never authorised the UNSW to obtain private and confidential information from the University of Adelaide.
·The Applicant’s PhD enrolment had been confirmed and he had been in receipt of the Scholarship for several weeks when the Registrar informed him of the termination of his enrolment and scholarship.

Submissions

In its written submissions the First Respondent submitted that no unlawful discrimination was identified or alleged in either the Application or affidavit filed by the Applicant.
The First Respondent submitted that against the backdrop of that summary there is no unlawful discrimination identified in either the Application or affidavit.
It was further submitted that in any event the matters referred to in the Application and affidavit are quite precisely the same matters that are the subject of decisions of the ADT in New South Wales. No appeal, it was noted, has been lodged from the decision of the Appeal Division of the ADT in DO v University of New South Wales (2003) NSWADT

AP 9.
In the alternative the Applicant is estopped from re-litigating the issue (see Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589) and the attempt to re-litigate constitutes to the abuse of process (State Bank of New South Wales v Stenhouse (1997) ATR 81-423, Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404).
It was assumed that the reference to Professor ‘Roy Hume’ as Respondent is a reference to the Vice Chancellor of the UNSW namely Professor ‘Wyatt Rory Hume’. If that is not the case then it was submitted it would appear the proceedings have no connection with the UNSW at all and should be dismissed on that basis.
It was submitted that the obtaining of information by the UNSW from other universities including the UA was precisely the same issue considered by the ADT of New South Wales and the Appeal Panel of the ADT of New South Wales. The Appeal Panel’s decision is final and binding and good in law unless or until set aside by a court of competent jurisdiction. It was submitted that there was a risk of inconsistency with the decisions of the ADTAP which the Applicant has alleged not to challenge if the Applicant was permitted to proceed in the Federal Magistrates Court.
It was submitted that the Applicant’s case against the First Respondent is clearly untenable (see General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 at 129 per Barwick CJ). There is no real question to be determined in this case and no unlawful discrimination is alleged or otherwise identified (see Dey v Victorian Railways Commission (1949) 78 CLR 62 at 91 per Dixon J). Even if a real question was identified the Applicant, it was submitted, is estopped from raising such issues in this Court or alternatively the attempt to raise the issue before the Court is an abuse of process. Accordingly the proceedings should be dismissed pursuant to Rule 13.10 of the Federal Magistrate Court Rules. The First Respondent otherwise pursued the issue of change of venue in the event that the summary dismissal Application failed.
The Second Respondent in written submissions again referred to the claim by the Applicant and apart from denying any claim by the Applicant also submitted that there was no evidence in the material which would constitute a breach of any anti-discrimination legislation. It was argued that the current Application should be dismissed because the material currently before the Court in the Application and supporting affidavit is not substantially the same as the material before the Commission pursuant to s.46PO(3) of the Human Rights and Equal Opportunity Act 1986. The Court should not entertain the Application and should dismiss it on that ground alone. It was submitted that the Application in any event does not disclose any reasonable cause of action as there is no evidence to support a claim of unlawful discrimination against the Second Respondent.
The Applicant in his various submissions and correspondence sought to distinguish what had been heard by the ADT on the basis that the complaint with the ADT was purely to examine his rights under the Personal Information Act New South Wales. He otherwise reiterates the complaints which have been agitated before the Commission and summarised earlier in this judgment. Essentially he refers to claims that he did not authorise the UA to disclose confidential information and claims that information was misleading and/or fabricated. He otherwise claims a violation of his human rights.
In its reply the Second Respondent denied any suggestion that any wrong of any kind was committed by the UA and it asserts that there is no evidence of any contravention of anti-discrimination legislation set out in the Applicant’s material.

Reasoning

If one takes the most generous view of the Applicant’s material it appears that he relies upon a breach of ss.17 and/or 27 of the RDA. In particular s.27 is relevant in that it provides that acts of victimisation are prohibited and that a person shall not intimidate or coerce or impose any pecuniary penalty upon another person by reason of the other person that the other person has made a complaint under the Act. To put it at its highest it is clear on the material that when the Applicant applied to the UNSW that in his Application for admission signed and dated 14 February 2002 the Applicant had not declared previous enrolments at the UA and other universities. It is not otherwise necessary to analyse in detail the procedures followed in the completion of the Application form of 14 February 2002. It is sufficient to note that whilst there may be some evidence that the UNSW was made aware of a complaint lodged against the UA with the Commission I am unable to determine that there is prima facie evidence of victimisation pursuant to s.27 of the RDA. There does not appear to be any or any sufficient evidence which would persuade the Court that there is even a prima facie case that can be established that information was received by the UNSW it was then acted upon in any way when it decided to terminate the enrolment and scholarship of the Applicant at the UNSW.
The Court is conscious of the fact that summary dismissal is a matter which should be approached with caution and used sparingly. In particular I note the judgment of Barwick CJ in General Steel Industries at p.129 as follows:-
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129) 10.
… Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
However applying the principles in the passage from General Steel to which I have just referred I am satisfied that there is no real question to be determined in the present case and I am satisfied that the Applicant’s claim is so obviously untenable that it cannot possibly succeed.
I am not satisfied that the parties to the complaint which is currently the subject of this Application are the same as those in the complaint that was before the Commission. It is noted that in Attachment B which was provided by the Applicant, he refers to the Respondents and their organisations and yet the notice of termination refers to the institutions namely, the UNSW and the UA. Whilst I am prepared to make due allowance for incorrect references to a party it is arguable that the claim currently before this Court has accordingly changed in substance from the claim before the Commission. Nevertheless I am not prepared to dismiss the claim on that basis as the main thrust of the complaint seems to be the perception of the Applicant that information disclosed by the UA had been used to terminate his scholarship and enrolment at the UNSW.
Whilst it is not necessary for me to determine whether the current application is an abuse of process or indeed whether issue estoppel arises as a result of the complaint and hearing before the ADT and the Appeal Division of the ADT, I add that I am satisfied the complaint before that Tribunal is substantially the same as the complaint currently sought to be agitated before this Court. It would otherwise be undesirable for this Court to embark upon a further enquiry at the risk of there being an inconsistent outcome. In any event as indicated earlier in this judgment I do not need to rely upon that difficulty in dismissing the present application. It is sufficient for the present purposes to note that I am satisfied that the application should be dismissed on the basis that the material does not disclose a contravention of the relevant legislation.
The claims by the Applicant in my view may properly be described as vague and general. I am satisfied that applying the appropriate law to which I have been referred that the orders of the Court should be as follows:

(1)The Application filed 12 March 2003 be dismissed.
(2)The Applicant pay the Respondents costs pursuant to Schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 28 November 2003